Clarify in the law that certain acts of communication or making available to the public that are conducted as part of a museum’s public interest mission do not infringe copyright

A - Issue at stake

  • As explained under Proposal 1, the lack of exceptions and limitations applicable to a museum’s digitization operations (and, in jurisdictions where some exceptions and limitations do apply, their limited scope) constitutes an important obstacle for museums to fulfil their public interest mission in an increasingly digital world. The issue is even greater when it comes to online dissemination of digitized works.
  • Indeed, museums generally need permission from the rights holder to make in-copyright works available online. Because of the territorial nature of the copyright and the international nature of websites, this means that museums need – at least in theory, even though they might choose not to do it in practice – to clear the rights for every country in the world1 unless clear and worldwide unified exceptions or limitations can be invoked.
  • In the European Union, even though national copyright laws are harmonised to a certain extent due to a number of directives, many issues remain non-harmonised including, to some extent, the question of copyright exceptions.2 Brexit may throw this issue into further disarray. Therefore, should museums wish to rely on an exception to put digital content online, they will technically need to ensure that the exception exists in every country where the content can be accessed. This state of the law is clearly unsuited to the 21st century; museums should be able to take full advantage of the technological developments for a wider dissemination among the general public of the works contained in their collections, in furtherance of their public mission.

B - Clarifications

  • New exceptions to the right of communication to the public3 shall be defined. These exceptions shall provide that museums may communicate works contained in their collections to the public or make them available to the public as part of their core public interest mission by executing the following specific acts (carried out by the museums themselves)4:
    • exhibiting or displaying the works in public in any format, including a digital reproduction, on the premises of the museum;
    • making available digital reproductions of analogue works contained in their collections on the website of the institution;
    • making available digital inventories of works contained in the collection to the public for purposes of education, private research or study5 (provided that such purposes are not pursued for commercial advantage6).
  • For more certainty, the acts carried out for the purposes listed above should be deemed not to pursue direct or indirect commercial advantage and not to conflict with the normal exploitation of the works or to unreasonably prejudice the legitimate interests of the rights holder.7
    • They shall be limited to the museum’s core public interest mission (which generally includes collection, preservation, exhibition and dissemination),8 thus be in accordance with applicable international treaties.9
      • If not already done,10 the definition of what constitutes a core public interest mission should be agreed upon per jurisdiction after consultation of the relevant stakeholders, including representatives of the copyright holders (i.e. individuals or collective management organisations), of the users (i.e. museums, general public) and of the competent public authorities.
      • For the sake of harmonization, it is advisable that multi-stakeholder international organizations, such as WIPO or UNESCO, propose a unified definition of the notion of a museum’s core public interest mission.
  • With regard to making available out of commerce works contained in the permanent collection on a museum’s website, when applying the exception, due account should be taken of remuneration schemes set up to compensate for any unreasonable actions contrary to the legitimate interests of rights holders, and ensure that all rights holders may at any time object to the use of any of their works that are deemed to be out of commerce and be able to exclude the use of their works. Acts which would otherwise be permitted under an exception shall not be permitted if valid ECL solutions are available authorizing the acts in question and the museum responsible for those acts knew or ought to have been aware of that fact. When a CMO, on behalf of its members, concludes a non-exclusive license for non-commercial purposes with a museum for the making available of out-of-commerce works permanently in the collection of the museum, such a non-exclusive license may be extended or presumed to apply to rights holders of the same category as those covered by the license who are not represented by the CMO, provided that:
    • the CMO is, on the basis of mandates from rights holders, broadly representative of rights holders in the category of works or other subject-matter and of the rights which are the subject of the license;
    • equal treatment is guaranteed to all rights holders in relation to the terms of the licence; and
    • all rights holders may at any time object to the application of the license to their works or other subject-matter.
  • This statutory exception should not extend to activities carried out by members of the public (e.g. it would not cover the analysis, reuse, sharing, and creation of derivative works by members of the public).11 The acts that the members of the public might accomplish with respect to the works made available via the museum’s website would need to fall under another statutory exception or be subject to the rights owner’s prior permission.
  • Similarly, the statutory exception described above in relation to the making available to the public of works should not extend to acts carried out by the museum that go beyond the non-commercial purposes specified. For example, online communication via social media (which can be used for both non-profit/educational and commercial purposes) or merchandising activities via the museum shop would require the prior authorisation of the rights owner.